City settles e-mail suit for $40K

Communication and accountability, Travin Pennington says, could have prevented a bill for his attorneys' fees that exceeded $40,000 following a seven-month battle with the city for e-mail records.

In June, Pennington filed public records requests for thousands of pages of e-mail from then-City Manager Paul Beecher and two other employees. He said Beecher took him into the city hall parking lot, and instead of asking how to resolve the issue, Beecher allegedly made some comments that pushed Pennington to "the tipping point."

"I said, 'this guy's out of control. I'm going to take this guy to task,'" Pennington told the Miner. And he did. After the city failed to disclose more than 8,000 pages of e-mail whose contents the city claimed were personal, Pennington filed a lawsuit in the Mohave County Superior Court.

City's side

The city's insurance policy will cover much of the costs of the lawsuit, including the city's own attorneys' fees, which topped $32,000, according to City Attorney Carl Cooper. But the awarding of fees doesn't mean the city was wrong in withholding most of the records.

"The special master," a court-appointed retired judge tasked with reviewing those e-mail records challenged by Pennington, "determined that most of the e-mail that was withheld was done so properly," Cooper wrote in an e-mail Monday. "There was no conspiracy found on behalf of the plaintiffs. The plaintiffs made an offer to settle, eventually an agreement was made," he said.

The special master ruled that about 6,000 pages of the more than 8,000 documents Pennington challenged were indeed personal in nature.

Pennington's attorneys offered $48,337.65 - 75 percent of the $64,448.50 in the plaintiff's total fees. The city came back with a $32,225 offer, and the two parties settled in the middle, at $40,281.30.

"We have insurance coverage for this case," Cooper wrote. "We do have an endorsement on the insurance that does allow for the city to object to any settlement, but then the city becomes responsible for the costs associated with the case as opposed to the insurance carrier, beyond the settlement offer. The city does have a $25,000 deductible. Our attorneys fees exceeded the deductible (our fees were just over $32,000). The city has been billed for our deductible of $25,000 which is our total costs regarding this matter."

City 'clean up'

The lawsuit and subsequent release of more than 1,200 pages of e-mail revealed many details about city business - from land deals in progress to how officials felt about controversies, public opinion and even the public records requests themselves. But Pennington isn't looking for a repeat performance.

"Hopefully, a lesson was learned out of this," he said. "The city manager can't treat the public the way he did and expect not to have consequences." Secondly, "Clean up your e-mail conduct," Pennington encouraged.

The city has made positive steps in that direction with its draft of a policy for handling future public records requests of such magnitude. Several officials said it was the inexperience in handling a request of such volume that led to some of the difficulty in efficiently releasing documents.

"Who was I to come in and question Paul Beecher? Well, I was a taxpayer. I had every right," Pennington said.

"And that's what makes America a great country: you can question authority, disagree with them when you think they're not right, and there are consequences."

The double-edged sword is that his inquiries may set the tone for residents in the future to challenge city leaders' authority, and now that Pennington is vying for a City Council seat, he could be on the receiving end of such inquiries in the future. But he encourages residents to do so, and he added, "I don't make promises I can't perform on."

Fees justified

In his application for attorney's fees, David Bodney of Steptoe & Johnson, the firm representing Pennington, argued that his client had "substantially prevailed" based on previous case laws involving Arizona's public records law.

Citing the fact that the city released 1,132 pages of e-mail because of the lawsuit, then another 104 after that, Bodney wrote in the application for award of fees that "There can be no doubt that Pennington's lawsuit resulted in the city disclosing more than 1,200 pages of e-mail records."

Calling the city's conduct "groundless, harassing and in bad faith," he noted how the city shifted its justification for withholding the documents, it demonstrated a bias against Pennington and his family, and it acted in bad faith and in an "arbitrary and capricious manner" through the proceedings.

In an e-mail to Pennington dated Dec. 20, Bodney wrote, "Congratulations to you on securing access to public records, exposing the city's problems and, generally speaking, cleaning up local government. Hopefully, you won't need to file a lawsuit next time you want to inspect public records in Kingman."

A leader's role

Pennington attributes many of the problems and controversies in city hall to the lack of leadership, accountability and communication - all of which Beecher was responsible for as the city's top administrator.

From the well site bidding processes to the secret severance package for Weir, even the $56.7 million in city bonds failing in November and the Residents Against Irresponsible Development watchdog group's challenges of various zoning and land use deals, it all came down to poor leadership, Pennington said. And Beecher set the tone for the rest of staff, he added.

"I think Beecher and those people just forgot who they worked for," Pennington told the Miner. "And every once in a while they need to be reminded of that."

Joke book

Although the majority of Pennington's legal fees will be covered, he said he could have been more satisfied with the outcome.

"Am I happy with the result? No. I would have liked to expose what were in the personal documents," he said.

Although he didn't necessary want to read through thousands of pages of personal e-mails that were described predominantly as jokes between department heads, Pennington said it may have provided the city with an opportunity to turn a profit.

"'The Kingman Dirty Joke Book' probably could have funded $56 million in bonds," he kidded. "Might have been a hit. Some of them I've read were actually pretty funny," he said.